Gleanings from the mind of a Christian Leader and Lawyer

Sunday afternoon, I had the privilege of joining a group at the Laurentian Leadership Centre as part of a nationwide concert of prayer for religious freedom in Canada – focused on the Supreme Court of Canada hearing scheduled for this Thursday and Friday. It’s not too late to pray, and to add this to your prayer list for this week and for the coming months.

In 2013 Trinity Western University, a private Christian university, satisfied all academic requirements of the Federation of Law Societies of Canada, the body approved by all law societies to assess accreditation standards for new law schools. That approval was followed by accreditation from the British Columbia Ministry of Advanced Education. In 2014, three law societies balked at their agreement with the Federation, but not for academic reasons. The law societies of British Columbia, Ontario and Nova Scotia objected to TWU’s Christian nature, particularly it’s Community Covenant which stands in place of the codes of conduct found on other university campuses. TWU’s staff and student covenant expresses a Christian standard of behaviour that is best summarized by Galatians 5:22-23, and includes a prohibition on sex outside of marriage between a woman and a man.

But the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness,gentleness, self-control; against such things there is no law. (Galatians 5:22-23)

As it turns out, even when “against such things there is no law” it doesn’t necessarily mean that a bunch of lawyers will accept your standards as legitimate. The law society in Nova Scotia was unsuccessful in that province’s courts and decided not to appeal to the Supreme Court of Canada. In B.C., the law society was also unsuccessful, but appealed to the nation’s highest court. In Ontario, the law society was successful and TWU has appealed to the Supreme Court. Both the Ontario and B.C. cases will be heard together at the end of this week on November 30 and December 1. Both cases will be webcast live by the Supreme Court of Canada.

So how can you pray?

First, thank God that you are joining a symphony of prayer from coast to coast to coast. Sunday’s concert may have ended but the symphony goes on.

Second, thank God that we live in the nation of Canada, where our fundamental freedoms of freedom of conscience and religion, freedom of thought, belief and opinion, freedom of peaceful assembly and freedom of association – all freedoms that benefit religious freedom for all Canadians – are recognized in our constitution and have been upheld by government and the courts.

Then, please pray for the justices of the Supreme Court of Canada who will hear this case. In order of seniority: Chief Justice Beverly McLachlin, Justice Rosalie Abella, Justice Michael Moldaver, Justice Andromache Karakatsanis, Justice Richard Wagner, Justice Clément Gascon, Justice Suzanne Côté, Justice Russell Brown, Justice Malcolm Rowe. They will hear the case this week, but will deliberate on it for several months before issuing a decision. The Chief Justice retires December 16 of this year, requiring any decisions she participates in to be issued within six months of that date. Please consider joining in regular prayer until the decision is issued. We pray for the Justices in accordance with 1 Timothy 2:1-3, as people in authority in our nation. May they have ears to hear. May they be wise and impartial in their judgments.

First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. This is good, and it is pleasing in the sight of God our Saviour… (2 Timothy 2:1-3)

Pray for the safety of all those traveling to and from Ottawa for this hearing, for their health, and particularly for the lawyers to have wisdom in their presentations before the court.

Pray for TWU’s legal team: Kevin Sawatsky is Dean of the TWU School of Business, and a lawyer; in Ontario, TWU is represented by Robert Staley and Ranjan Agarwal; and, in B.C. by Kevin Boonstra and Jonathan Maryniuk. Brayden Volkenant is a student who would like to pursue a law degree at TWU and also a party to the B.C. case. He is represented by Kevin Boonstra, Jonathan Maryniuk, Andrew Delmonico and Anne Cochrane.

Pray for the lawyers of the interveners supporting TWU in their arguments before the court: Barry Bussey and Philip Milley for the Canadian Counsel of Christian Charities; André Schutten for the Association for Reformed Political Action (ARPA) Canada; Bill Sammon for the Canadian Conference of Catholic Bishops; Derek Ross and Deina Warren for the Christian Legal Fellowship; Gerald Chipeur, Jonathan Martin and Grace MacKintosh for the Seventh-day Adventist Church in Canada; Albertos Polizogopoulos, Geoffrey Cowper, Kristen Debs and Geoffrey Trotter for The Evangelical Fellowship of Canada and Christian Higher Education Canada; Gwendoline Allison for the Roman Catholic Archdiocese of Vancouver, the Catholic Civil Rights League and the Faith and Freedom Alliance; Avnish Nanda and Balpreet Singh Boparai for the World Sikh Organization; Eugene Meehan for the International Coalition of Professors of Law; and, Eugene Meehan and Daniel Santoro for the National Coalition of Catholic School Trustees Associations.

In addition, representatives from TWU have asked for prayer that there will be a healing of the hurts revealed through this process. The request is particularly that the dialogue between all people who live together in the shared free and democratic society of Canada might continue with respect and acceptance, even when there is not agreement. May our sins also be forgiven – perhaps, considering some sins to be worse than others, speaking words of condemnation rather than invitation, or simply as broken people allowing our brokenness and rough edges to cause hurt to others.

If my people who are called by my name humble themselves, and pray and seek my face and turn from their wicked ways, then I will hear from heaven and will forgive their sin and heal their land. (2 Chronicles 7:14)

Thank you Madam Chair for the opportunity to participate today. My comments will follow my written submission.

Anti-religious discrimination in Canada has not been confined to any one religious community. And, such incidents cannot be considered to be of greater or lesser significance based simply on which religious community is targeted.

While unfortunate that M-103 highlighted one religious community, the motion did spark national debate and provided a mandate for this committee that goes beyond the concerns of or for any one religious community.

I will set aside comment on the use of the uncertain term Islamophobia; except to suggest that the concern of this committee ought to be in regard to mistreatment of people from any and all religious communities. Islam is not a race. Muslims, and people in any other religious community, are from a variety of races. My comments will address the committee’s study in regard to mistreatment of people based on their religion and reducing systemic discrimination based on religion.

Canada is a nation with a history steeped in religious tension, religious accommodation and the development of robust political, legal and constitutional principles in regard to freedom of religion, including prohibitions on discrimination based on religion. A brief history of that religious tension and accommodation is set out in paragraphs 8 to 16 of my written submission, particularly noting the Constitution Act, 1867 did not assign responsibility for religion to either the federal or provincial governments. Although, both jurisdictions impact on religion.

The federal government assumed a role in regard to religion through its criminal law and taxation powers. The provinces, through constitutional jurisdiction over civil rights, enacted human rights legislation that includes recognition of religious rights to belief, association, assembly, teaching, practice and worship.

The Canadian Charter of Rights and Freedoms was included in the Constitution Act, 1982. The Charter applies between all levels of government – federal, provincial, territorial, municipal, school boards, other government agencies – and Canadians.

The first freedom in the Charter is “freedom of conscience and religion.”

In decisions on Charter cases, the Supreme Court of Canada has affirmed several pre-Charter legal concepts in regard to freedom of religion and religious accommodation which are briefly described in paragraphs 17 to 20 of my written submission.

In the Charter, freedom of religion is intimately connected with the freedoms that follow it in section 2. “Religion” is also a stated ground on which discrimination is prohibited under section 15 equality rights. Section 27 requires the Charter to “be interpreted in a manner consistent with… the multicultural heritage of Canadians,” which necessarily means a multi-religious heritage as well.

The Supreme Court has asserted a robust definition of “freedom of religion” that aligns with the UN Declaration of Human Rights, stating:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. … The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

The Court continues:

… Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

The right applies to individuals, groups and institutions, because religion is practiced both individually and in community.

Canada does not have a doctrine of separation of church and state, a constitutional concept in the USA. The Supreme Court has ruled the Canadian state is to be “neutral” in regard to religion, not permitted to act as arbiter of religious beliefs or to favour one religion over another. Nor is government permitted to require “no religion” in its relationship with Canadians. All Canadians are constitutionally welcome to participate in Canadian life from the perspective or worldview that informs the way they choose to live, without fear of mistreatment or punishment for doing so.

Statistics Canada confirms that our nation’s largest identifiable religious community comprises simply the largest minority religious community in the country. Catholics, including Roman Catholics, comprise under 40% of Canadians. We are a nation of minorities.

2015 data on hate crimes notes 35% of reported incidents were motivated by anti-religious bias. 37% of anti-religious incidents were directed against the Jewish community, which comprises 1.1% of the Canadian population. 34% were directed against the Muslim community, which comprises 3.2% of the Canadian population.

This brief historic tour and commentary is offered in a context expressed by a Mi’kmaq friend. Look back to learn how the issue has been considered in the past. Assess the status today. And then look forward seven generations to consider the future impact of actions taken today. Looking forward seven generations would take us from #Canada150 to #Canada300. If that seems a stretch, at least look to #Canada200, which will take place within the lifetimes of many in this room, rather than be overly concerned about scheduled federal elections in 2019 or 2023.

The following recommendations are made in the spirit of the Constitution Act, 1867’s provision that the federal government “make Laws for the Peace, Order, and good Government of Canada,” the Constitution Act, 1982’s description of Canada as a “free and democratic society,” and a whole-of-government approach.

Parliamentarians are encouraged to engage openly with people of various religious beliefs, including connecting with faith-based organizations in the community and those participating in the process of policy development.

Continue to Protect

Remove from Bill C-51 its section 14, the proposal to eliminate section 176 from the Criminal Code. Section 176 protects the ability of religious officiants and congregations to celebrate religious services, without threat, interference or disruption. If the Criminal Code did not already contain such a provision, adding it would be the kind of recommendation anticipated from this committee.

Retain section 30 of Bill C-51, the proposal to remove section 296, the Criminal Code’s blasphemy section. Blasphemy laws in other nations have led to persecution of religious and non-religious minorities, counter to the values of a free and democratic society. In Canada, all beliefs and practices, religious and non-religious, must be open to critical evaluation and peaceful dialogue, debate and dissension.

From “The Law Society of Upper Canada, Respect for Religious and Spiritual Beliefs: A Statement of Principles of the Law Society of Upper Canada,” March 10, 2005, at pages 23 and 24, paragraphs 49-52:

The incidents of religiously motivated discrimination and hatred outlined in this report and the Canadian and international condemnation of discrimination and hatred based on religion reinforce the importance for the Law Society to adopt a Statement of Principles that recognizes religious diversity.

Therefore, the Law Society adopts the following Statement of Principles.

The Law Society of Upper Canada, recognizing that:

a. Respect for religious diversity advances the cause of justice;

b. The rule of law is enhanced when religiously motivated discrimination or hatred is not tolerated;

c. There continues to be a disturbing number of incidents of religious discrimination and religiously motivated hate crimes in Ontario and in Canada, as well as in the world;

d. The laws of Ontario and Canada guarantee freedom of conscience and religion, and prohibit discrimination and the wilful promotion of hatred on the basis of religion or creed;

e. The international community has condemned religious discrimination as harmful and unacceptable, and has recommended that measures be undertaken to combat religious hatred and discrimination; and

f. Although particular groups may be frequent targets of religious discrimination, religious hatred and discrimination is a problem of Canadian society as a whole;

The Law Society of Upper Canada condemns in the strongest terms all manifestations and forms of hatred and discrimination based upon religious and spiritual beliefs. Although current circumstances centre predominantly on issues of anti-Semitism and Islamophobia, the Law Society condemns all forms of religious intolerance directed at any group or community.

The Law Society of Upper Canada undertakes to promote and support religious understanding and respect both inside and outside the legal profession.

Thirty-six years ago, negotiations between Canada’s federal and provincial governments about the patriation of Canada’s constitution followed on the heels of a close referendum over the potential separation of Quebec. It was Ontario’s Bill Davis who led a group of premiers insisting the preamble to the nation’s proposed constitutional guarantee of human rights acknowledge “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

Don at the Supreme Court of Canada

The sitting Prime Minister’s opinion was expressed to his caucus as, “I don’t think God gives a damn whether he’s in the Constitution.” Pierre Trudeau may have had a point, but Davis’ position carried the day in the Constitution Act, 1982 .

In addition to affirming an expansive understanding of religious freedom for individuals andreligious organizations under the Canadian Charter of Rights and Freedoms in more than a dozen decisions, the Supreme Court of Canada has commented specifically on the language in the preamble, stating:

… the preamble to the Charter itself establishes that “… Canada is founded upon principles that recognize the supremacy of God and the rule of law”. According to the reasoning espoused by Saunders J., if one’s moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has “belief” or “faith” in something, be it atheistic, agnostic or religious.

To construe the “secular” as the realm of the “unbelief” is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism.

The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism. [Justice Gonthier, endorsed by Chief Justice McLachlin, in the 2002 decision in Chamberlain v. Surrey School Board .]

As the fall session of the Supreme Court begins its sittings, the Government of Ontario and the Law Society of Upper Canada (Ontario) have filed written arguments to challenge the establishment of a law school by a Christian university. They will appear later this year to state their position verbally. Trinity Western University’s proposed school of law complies in all respects with academic requirements agreed upon by members of the Federation of Law Societies of Canada, including Ontario’s.

Still, both the government and law society argue (to use the Supreme Court’s language above) there is a need for them to put the private university “at a public disadvantage or disqualification” because the law society and government disagree with the university’s “religiously informed conscience” on the matter of a faith-based community covenant for staff and students. Both particularly object that the covenant prohibits sex between students or staff outside of marriage between one woman and one man.

It’s worth noting that in 2001 the Supreme Court supported Trinity Western’s community standards in a similar scenario when the challenge was brought by the British Columbia College of Teachers. The Court concluded the university met academic requirements and could offer an education degree, acknowledging not everyone would want to attend the private Christian university. Graduates who decided to teach in in B.C. would be subject to the B.C. College of Teachers’ rules of conduct. The Court noted, “if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.”

In its 2004 decision in Reference re Same Sex Marriage , the Court expressed its position that there would be genuine differences of opinion about marriage. Protecting the right of religious individuals and communities to hold a definition of marriage at variance with that of the State, the Court observed, “The right to freedom of religion enshrined in s. 2 (a ) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice.”

In its submission to the Supreme Court in the law school case, the Law Society of Upper Canada bases its objection to Trinity Western operating a law school and the licensing of its graduates to practice law because the Law Society considers the Christian university to be “a private institution” with a “discriminatory admissions policy.” Effectively, the Law Society of Upper Canada contends the graduates of a law school that fulfils the academic requirements established to competently practice law in Canada may do so anywhere but Ontario, because the operating ethos of the school is Christian in belief and practice. The Government of Ontario has intervened in support of the Law Society’s position: no school, no graduates.

Consistent with this distortion of “liberal principles in an illiberal fashion” (to go back to Justice Gonthier’s words above about placing the religiously informed at disadvantage), in recent weeks the Law Society has initiated an extension of its submission on Trinity Western for application to currently licensed lawyers in Ontario. The Law Society has issued a directive requiring all its members “to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” before January 1, 2018.

The new decree is framed within efforts to address racism within the legal profession, but the language chosen leaves little doubt that the promotion of “equality, diversity and inclusion generally” goes beyond the question of race.

As a Christian, I believe and practice the Biblical recognition that all persons are created in the image of God (Genesis 1:26-27) with inherent dignity and value, and are worthy of respect.

As a licensee of the Law Society of Upper Canada, I am obligated to abide by the laws in the Province of Ontario generally, particularly the Ontario Human Rights Code . Under the Law Society’s Rules of Professional Conduct I have “a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity” as well as to “be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of their practice.”

I expect to find myself among a group of lawyers from a variety of faith communities who consider our religious beliefs, commitment to the laws of nation and province, and obligations under existing rules of professional conduct – which is a mandatory community covenant for all who desire to practice law – as sufficient to address the Law Society’s concerns. There really is nothing more to add for purposes of an individual Statement of Principles.

However, submitting a statement that says my faith beliefs and existing obligations are more-than-enough may fall short of the Law Society’s expectation for members to “promote equality, diversity and inclusion generally.” Perhaps, only because we may have different understandings of what the words “promote,” “equality,” “diversity,” and “inclusion” mean. If adjudged that this more-than-enough is too little, I will likely find myself in the companionship of a substantial number of lawyers who, like potential graduates of Trinity Western University’s proposed school of law, have satisfied all academic requirements to engage in the practice of law, comply with Ontario’s laws and our obligations under the Rules of Professional Conduct, but will not bow religiously informed consciences to the god of 21 century political correctness.

Thirty-five years after Canada’s new constitutional Charter of Rights and Freedoms expressed its guarantee for the fundamental freedom of freedom of religion, it appears officials at the Law Society of Upper Canada and political leaders in the Government of Ontario might now well be the ones who don’t give a damn, this time concerning what the rule of law has to say about those who recognize the supremacy of God.

It took decades of deliberation to launch a prosecution. Monday’s conviction of Winston Blackmore and James Oler was the first in the 127 year existence of Canada’s Criminal Code prohibition against polygamy, following more than seven decades of plural marriage practice in Bountiful, British Columbia.

Don at the Supreme Court of Canada

This constitutional battle will likely come to end with a decision of the Supreme Court of Canada. During the trial, Blackmore’s lawyer announced his client would appeal a guilty verdict if one was delivered by B.C. Justice Sheri Ann Donegan.

What is the likely final outcome? Does Canada face legal, constitutionally supported polygamy as some predicted during the national debate about redefinition of marriage?

Let’s review some history behind this week’s decision before I share an educated guess on the final outcome.

The situation in Bountiful was one of Canada’s drawn-out well-known secrets. In the 1990s Canadians were awakened to the long submerged truth about child sexual abuse in a variety of settings where adults had been regarded as positive role models to children in their care – schools, hockey arenas and religious institutions among them. In that wake, the RCMP expressed concern to the Attorney General of B.C. about the wives and children of Bountiful.

A series of Attorneys General had studies prepared about the likelihood of courtroom success, apprehensive because of the Constitution Act, 1982’s guarantee of religious freedom in the Canadian Charter of Rights and Freedoms. The reports consistently advised prosecutors were unlikely to prevail as the marriages in Bountiful were not formalized in accordance with provincial requirements. Rather, they were religious marriages, called “celestial” marriages, documented in the records of the Fundamentalist Church of Jesus Christ of Latter Day Saints. FLDS is the breakaway Mormon sect in Bountiful that has tied its practice of plural marriage to its religious beliefs, as the main branch of Mormonism had done until the late 1800s.

In 2007, B.C. Attorney General Wally Oppal had had enough. Those who left Bountiful, by escape or eviction, confirmed RCMP concerns. Girls were groomed from childhood to become teen brides in the multiple celestial marriages of older men. Some were pre or early teen sexual conquests before marriage. Boys and young men deemed competition to dominant males were expelled, losing home, family and their place in the world.

Two special prosecutors retained by Oppal again recommended no action be taken. In 2009, a third special prosecutor agreed to move ahead. Technical errors in his appointment resulted in action being stymied.

In 2011, the B.C. Supreme Court ruled section 293 – the polygamy section – of the Criminal Code constitutional. Tracking the structure in Charter decisions of the Supreme Court of Canada, B.C. Chief Justice Bauman found the right to religious freedom – freedom to believe, worship, share religious beliefs openly, teach, evangelize and engage in practices interconnected with sincerely held religious beliefs – is violated by section 293 in regard to celestial marriages, but the violation is a justifiable and reasonable measure for the protection of women, children and the interests of society.

In 2014, one charge each was laid against Blackmore, who has twenty-four wives, and Oler, who has five. Both were convicted on Monday. Each charge carries a maximum sentence of five years imprisonment. Both intend to appeal.

This case will likely end with a decision of the Supreme Court of Canada, unless a plea deal is reached with Blackmore and Oler. Now headed to the B.C. Court of Appeal, if the decision of that court is well-reasoned it’s possible the SCoC will decline to hear the case, deciding to enforce the ruling of the appeal court. More likely, there will be a hearing before Canada’s highest court at some point in the coming years.

The other potential ending is in Parliament.

In 2004, the SCoC reminded Canadians that the Constitution Act, 1867 (formerly known as the British North America Act) remains relevant in the Charter era. Resolution to the constitutional reference case on same-sex marriage by the Canadian government was found in section 91 of the 1867 Act. The federal government has the constitutional jurisdiction to define “marriage” for Canadians. The Court noted that a redefinition in contradiction to religious beliefs could not be used to force a change in religious beliefs or practices.

The Civil Marriage Act was passed in 2005 by Prime Minister Paul Martin’s minority Liberal government, with support from the NDP and Bloc Quebecois. Canada’s definition of marriage was restated as “the lawful union of two persons to the exclusion of all others.” Martin’s hands had been tied on the issue, but not by the SCoC. His predecessor, Jean Chretien, had decided to not appeal court rulings in several provinces that authorized the solemnization of same-sex marriages – solemnization of marriage is provincial jurisdiction under section 92 of the Constitution Act, 1867. Martin was left with the quagmire of not recognizing same-sex marriages lawful in a checkerboard of provinces or extending authorization to all. His government did not remove section 293 from the Criminal Code.

Parliament has the authority to, again, redefine marriage. However, I expect judges and legislators will respect the 2005 definition of marriage, the 2011 legal reasoning of Chief Justice Bauman and this week’s decision of Justice Donegan.